Canada’s justice system consists of more than courts, judges, and lawyers. To comprehend the totality of the justice system, it is necessary first to observe the three founding principles at the core of Canada’s justice system. As a principle, the rule of law holds that all citizens are subject to the same set of laws, and not to preferential or arbitrary treatment. Then there are the rules of judicial impartiality and independence that pertain to the role of judges. That is, by presiding over the court system, judges are expected to be impartial in assessing the law and the evidence presented in a case. Judicial independence directs attention to the fact that extraneous forces including the legislative and executive branches of government cannot exert undue influence on judges as they decide cases.
Besides these core principles, Canada’s justice system embraces many specific types of law that may be conveniently categorized as being either public or private law. Public law refers to laws that impact society as a whole, including constitutional, criminal, and administrative laws. Private law includes many types of laws that affect the relationships among individuals and organizations, including family, contract, and property laws.
Two legal traditions in respect to how judges interpret private law are found in Canada. The British-styled common law tradition is followed in the nine mainly English-speaking provinces and in the territories, where judges consider precedents (or stare decisis) in similar cases in making their decisions. Meanwhile, in Quebec, the codified civil law tradition is used that relies upon the application of a set of collected and specified laws.
Along with the preceding legal foundations, we can next identify the major players within the Canadian justice system. The key cabinet ministers are usually entitled the minister of justice and the minister of public safety, found at both the federal and provincial levels of government, although there may be slight variations with these portfolio names.
The judiciary, consisting of judges and their courts, directly adjudicates challenges to, and breeches of, the law. Occasionally a proposed law may be referred by the executive (as a reference case) to a superior court to rule on its constitutionality instead of waiting for an actual case to arise.
Other players within the justice system include different peace officers who fulfill a number of roles, including police, parole officers, and correctional officers. Finally, working with the police, crown attorneys are lawyers who decide first whether to take a criminal law case to court and then serve to prosecute these cases in the name of the state.
Closely related to the various players is the matter of how the courts are structured to provide a cohesive judiciary. First, Canadian courts are federal in that both levels of government share division of authority within the justice system. At the same time, all courts are in a hierarchical relationship with each other as decisions of lower courts may be subject to appeal to higher or appellate courts. As such, the Supreme Court of Canada is at the top of the hierarchy as the highest court in Canada, with its nine justices appointed by the federal government.
There is considerable variation in the types of courts and their respective jurisdictions, and in how judges are appointed to each court. Similarly, police forces across the country are mainly under provincial jurisdiction but devolved locally to city and town governments. The RCMP is a national police force but many of its officers are also assigned under contract to serve as local or provincial/territorial police forces in many parts of Canada. Likewise, federal, provincial, and territorial jurisdictions provide a diversity of correctional facilities.
This last observation raises a fundamental normative issue. Should Canada be spending more public funds on facilities to hold more inmates with mandatory sentences, or should these funds be directed to rehabilitation in preparation of return to society?
This chapter’s professor profile is on Emmett McFarlane, a constitutional law expert whose research includes exploring relationships between governance and public policy. Professor McFarlane is also the author of Governing from the Bench and has given non-partisan policy advice to the Government of Canada on various policy related issues. This chapter ends with a debate and discussion on the consequences of mandatory minimum sentences.
By the end of this chapter, students should be able to:
- identify the legal foundations of Canada’s justice system;
- describe the roles of the major players within Canada’s justice system; and
- elaborate on the structure of Canada’s justice system.